Delhi HC Reserves Order On Sharjeel Imam's Plea Against Trial Court Extending Time For Probe Under UAPA

The Delhi High Court on Thursday reserved judgement in former JNU student Sharjeel Imam's plea seeking bail in a case related to the alleged seditious and inflammatory speeches delivered by him during the protests which took place against the Citizenship (Amendment) Act, 2019, and the National Register of Citizens (NRC). An FIR had been filed against Imam under Sections 153A, 124A and 505 of the Indian Penal Code, and pursuant to the same, Imam had been arrested on January 28th. Subsequently, provisions of the Unlawful Activities (Prevention) Act, 1967, had been invoked against him. On the 88th day of his custody, an application to extend time for probe was filed under Section 43D of the UAPA, thereby depriving him of the right to access statutory bail which is granted after 90 days of custody as per Section 167(2) of the Code of Criminal Procedure. In light of the above, Imam's plea for default bail under Section 167 of CrPC was rejected by the trial court and time was given to the Delhi Police to investigate under provisions of Unlawful Activities (Prevention) Act, 1967. The instant petition before the Delhi High Court has been filed on behalf of Imam to set aside the Order of the trial court which had allowed the Delhi Police three more months, beyond the normal statutory 90 days, to conduct an investigation for commission of offences under UAPA. At the previous hearings, notice had been issued by a Single Judge Bench of Justice V. Kameswar Rao, and time had been granted to the Delhi Police to file an additional status report. In today's hearing, Senior Advocate Rebecca John, appearing on behalf of Imam, submitted to the Court that there was no notice issued by the Court regarding the extension of the probe time beyond 90 days under provisions UAPA. She had instead received a WhatsApp message on the 24th of April from the Investigation Officer with respect to the extension being sought under UAPA. John invoked various cases, such as Hitendra Vishnu Thakur v. State of Maharashtra (1994), Sanjay Kumar Kedia v. GNCTD (1996) and Mohd. Maroof & Ors. v. State (2015) to underline the importance of how the essential requirements under Section 43D(2) of UAPA had been foregone as neither notice had been issued at the level of the Court, nor any compelling reasons had been provided by the Public Prosecutor for the extension of the probe time. Additionally, the defendant had also not been produced before the Court, thereby depriving him of the ability to contest the allegations. She stated that the notice issued by the IO could not, by any stretch of imagination, be termed as notice issued by the Court. Additionally, Section 43D does not envisage any private communication between the IO and the Counsel of the accused. "Notice is supposed to be issued by the Court. I got the information by the IO on WhatsApp at 11 AM. Court is supposed to look at the report of the Public Prosecutor. When the IO messaged, that report was not in existence. IO's communication to me on 24th April was meaningless because no report was present. The Court then noted that I had REFUSED to come." John argued that the message was, therefore, "premature, meaningless and missed a lot of statutory steps" and had put her in a situation wherein, despite having information about the matter, she was not able to appear. John further emphasized on the responsibilities of the Public Prosecutor to apply his/her mind in an independent manner before endorsing the report of the Investigation Officer. She submitted that the PP's report was a cut, copy, paste job which had relied entirely upon what had been said by the IO; it could not be treated as an independent examination as even the grammatical and typographical errors had been replicated. "Courts have attached great value to independent application of mind of PP. Just because IO wants extension, it is not incumbent upon the PP to endorse the report. The PP is an important part of the State Government. He is not a part of the investigative agency, but an independent statutory authority. He may or may not agree with the IO; he is not a post office." John further submitted to the Court that no compelling reasons had been provided on behalf of the PP in the status report. It was contended by her that investigation could not be stopped solely on the basis of the COVID-19 pandemic and that the pandemic could not be used to deny liberty. "Why does it take you the 88th day to say that you need to investigate this? Where is the compelling reason? It does not behoove the PP to say that on 25th April, you had to investigate. Just because you have the right under Section 43D to ask extension, it does not mean you are entitled to get it. Can it be assumed that the PP did not ask the IO why this was being moved on the 88th day?" John further referred to the 23rd March order of the Supreme Court in the Suo Moto Writ Petition with regard to Contagion of COVID-19 Virus...

Delhi HC Reserves Order On Sharjeel Imam's Plea Against Trial Court Extending Time For Probe Under UAPA

Radhika Roy

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